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Changes Made to the Definition of Misconduct Under the Florida Unemployment Statutes

With unemployment on the rise, the number of claims filed for unemployment compensation benefits has soared. On June 27, 2011, Governor Rick Scott signed new legislation which expands the meaning of misconduct under the unemployment compensation statutes. Under the old unemployment compensation laws, establishing misconduct often proved difficult for employers because the employer had to show that either: (1) the employee demonstrated a willful or wanton disregard of the employer's interests and deliberately violated or disregarded the standards of behavior which the employer had a right to expect of his or her employee; or (2) acted so carelessly or negligently as to establish an intentional and substantial disregard of the employer's interests or the employee's duties and obligations to the employer. The new definition of misconduct changes the standard under the first prong to provide that an employee's conduct must demonstrate a "conscious" as opposed to "willful or wanton disregard" of the employer's interests. The new statutory definition of misconduct, which may be found in Fla. Stat. §443.036(30), also provides specific examples of misconduct, which include:

  • Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer;
  • One or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence;
  • A willful and deliberate violation of a standard or regulation of the State of Florida by an employee of an employer licensed or certified by the State, which violation would cause the employer to be sanctioned or have its license or certification suspended by the State; and
  • Violations of an employer’s rules, unless the claimant can show that he or she did not know and could not reasonably know about the rule; the rule is unlawful or not reasonably related to the claimant’s job or job performance; or the rule is not fairly or consistently enforced by the employer.

One of the other important expansions to the definition of misconduct is that misconduct is not limited to acts committed by the employee at the workplace or during working hours.

While the expansion of the definition of misconduct will likely benefit employers by making the employer's burden to prove misconduct less onerous, employers should keep in mind that, simply because they may have a valid basis for terminating an employee does not automatically disqualify an employee from receiving unemployment compensation benefits. Instead, the employer must demonstrate that the employee's conduct meets the statutory definition of misconduct defined above.

Categories: Labor and Employment
Tags: Brett J. SchneiderFlorida LegislatureUnemployment CompensationEmployee MisconductSouth Florida Business Dispute Litigation AttorneysSouth Florida Business Dispute Litigation Lawyers
Author(s): Alison F. Smith

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